Supreme Court Justices Skeptical Over Upholding Prop 8

Supreme Court 3Reagan administration lawyer Charles J. Cooper was the first lawyer to speak during Hollingsworth v. Perry, arguing that Proposition 8, California’s ban on gay marriage, should be upheld. But the Supreme Court Justices expressed their share of skepticism.

The Los Angeles Times reports:

Chief Justice John G. Roberts, Jr. questioned Cooper as to whether his clients had standing to challenge lower court decisions overturning Proposition 8.

Justice Anthony Kennedy, seen as the swing vote on the issue, asked about the rights of children whose parents are already married.

“They want their parents to have full recognition,” Kennedy said to Cooper.

The Times added:

Justices Sonia Sotomayor, Elena Kagan, Stephen G. Breyer and Ruth Bader Ginsburg pounded Cooper for linking marriage to child-bearing, with Kagan asking if states could also prohibit couples over age 55 from getting married. Cooper responded that even in that case, at least one member of the marriage would likely still be fertile, a suggestion that drew laughter from the courtroom.

On the conservative wing of the court, Justice Antonin Scalia jumped most forcefully to Cooper’s defense, suggesting that it is unclear whether the children of gay couples may suffer long-term damage.

Cooper was up against Theodore Olson, who argued that an equal right to marry is basic to American liberty, while Cooper contended that the decision to change state marriage laws should be left up to voters in each state.

The Supreme Court will post audio of the arguments on its website around 1 pm and will release the full written transcript about an hour later. The court’s ruling is expected in June, and could be one of these four options:

*[T]he justices could uphold Proposition 8 and rule gay marriage is not a constitutional right. This would leave the issue in the hands of each state.

*The justices could dismiss the appeal on procedural grounds and return the Proposition 8 case to a federal court in San Francisco. This would likely lead to gay marriage becoming legal again in California.

*The third option would be for the court to strike down Proposition 8 as unconstitutional, but to do so on a narrow basis. The U.S. 9th Circuit Court of Appeals, for example, said that the voter initiative wrongly took away a right that gays and lesbians had won in the state court. If the justices were to adopt this approach, the decision would affect only California.

*Finally, the court could rule broadly that denying marriage to committed gay couples is unconstitutional, a decision that could legalize gay marriage nationwide.

We’ll keep posting updates as they become available.